Hopkins v Kay, Court of Appeal Decision

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The Ontario Court of Appeal released today (February 18) its decision from the December hearing. The appeal dealt with the jurisdiction of the Superior Court to hear “a common law claim for breach of privacy” in a hospital.

The Ontario Court of Appeal stated in its decision that “there is no merit to the suggestion that the court should decline to exercise its jurisdiction”. The Personal Health Information Protection Act (PHIPA) does not contain an effective dispute resolution procedure for privacy breaches that occur in the hospital.

Sharpe J.A., writing for the Court of Appeal, looked at the process for dispute resolution, the nature of the dispute and its relation to the legislation, and “the capacity of the scheme to afford effective redress”.

Sharpe J.A. writes at paragraph 73:

I conclude that the language of PHIPA does not imply a legislative intention to create an exhaustive code in relation to personal health information. PHIPA expressly contemplates other proceedings in relation to personal health information. PHIPA’s highly discretionary review procedure is tailored to deal with systemic issues rather than individual complaints. Given the nature of the elements of the common law action, I do not agree that allowing individuals to pursue common law claims conflicts with or would undermine the scheme established by PHIPA, nor am I satisfied that the review procedure established by PHIPA ensures that individuals who complain about their privacy in personal health information will have effective redress. There is no basis to exclude the jurisdiction of the Superior Court from entertaining a common law claim for breach of privacy and, given the absence of an effective dispute resolution procedure, there is no merit to the suggestion that the court should decline to exercise its jurisdiction.

The Hopkins v Kay Court of Appeal decision is a significant case. It could open the door for further class action lawsuits against hospitals and hospital employees that breach patient privacy. People are likely to sue hospitals and hospital employees that breach privacy because they have deep pockets (hospitals and hospital employees commonly have insurance policies that respond to litigation). So, I anticipate an increase in these types of cases.

 

My notes on the hearing: https://heatherdouglaslaw.wordpress.com/2014/12/16/hopkins-v-kay-court-of-appeal-hearing/

The case can be read in its entirety here: http://canlii.ca/t/ggbt6

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